Free-Speech Battle Heats Up Over Public Comments at OC Supervisors’ Meetings

ACLU attorney Brendan Hamme (left) has challenged public comment restrictions imposed by OC supervisors' Chairwoman Michelle Steel (right). (Photos by Kaitlin Washburn and Nick Gerda)

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A freedom-of-speech battle over public comments at Orange County supervisors’ meetings is heating up – and could be headed to court – after the supervisors’ top attorney argued against changing policies the American Civil Liberties Union claims are illegal.

County supervisors are planning to vote next week on changing two policies challenged by the ACLU of Southern California.

But other rules the ACLU objected to, like a ban on public speakers addressing supervisors by name, were defended by County Counsel Leon Page after meeting with supervisors last week.

In response, an ACLU official said the issue may have to be decided in court.

“We are deeply disappointed that the Board of Supervisors has decided to continue treating their constituents as obstacles,” ACLU staff attorney Brendan Hamme wrote in a statement Sunday.

“If they won’t willingly listen to the community, they will have to listen to the courts. It’s just unfortunate that, yet again, the Board would rather waste taxpayers’ dollars on needless litigation than voluntarily serve the public and invest that money into desperately needed services for those in the County.”

Page, the supervisors’ attorney, called Hamme’s remarks “unfortunate.”

“As you can see from my email to Mr. Hamme, I invited the ACLU to continue this conversation. I did not reject out of hand their proposals,” Page wrote in an email to Voice of OC early Monday.

“Rather, I asked Mr. Hamme to identify what I might have missed in my legal analysis. Obviously, I can’t stop Mr. Hamme from filing a lawsuit, and I have no way of predicting what the courts will do, but I do know that moneys spent on Mr. Hamme’s attorney’s fees will do nothing to improve the services that the County provides to its residents.”

Following a demand letter last month from the ACLU that threatened legal action, the supervisors stopped enforcing a policy they’ve used to restrict comments to one minute per person.

And Page said the supervisors will vote next week on eliminating that policy entirely and loosening another that regulated handheld signs.

“With respect to the other issues you identified in your letter, we did take a very close look and (respectfully) came to the conclusion that many of your arguments were misplaced or lack merit,” Page wrote.

He sent Hamme a detailed legal analysis explaining his position, including a defense of the rule against addressing supervisors by name.

That rule “does not (as you suggest) preclude a speaker from making pertinent comments about an individual Board member,” and “does not control the substance of speech,” Page wrote to Hamme.

“The rule simply directs – in an effort to preserve decorum – that such comments be directed to the Board through the Chair.”

The discussion was sparked by a March 13 letter from the ACLU, which threatened legal action against the Board of Supervisors over a series of policies the ACLU claimed violated free speech rights.

Among the complaints was a policy that allows supervisors to reduce the official three-minute-per-person speaking time to one minute, no matter how many items a member of the public wants to speak about.

That one-minute limit was imposed at the Jan. 24 meeting by Chairwoman Michelle Steel. A board policy allowed her to shorten each speaker’s time limit when there were enough speakers – more than six – to make the meeting’s public comment period longer than 20 minutes.

But when she enforced the rule, Steel allowed executives at luxury airplane service companies to speak significantly longer than homeless advocates and county workers who talked about poverty.

The ACLU also took issue with policies that ban speakers from addressing supervisors by name, prohibit handheld paper signs, and block the release of security videos.

Supervisors went into closed session last week to discuss the letter and emerged with a plan to vote on changing the speaking time and sign policies at the April 11 meeting, according to emails Page sent to the ACLU.

In an email a few hours after supervisors discussed the ACLU letter, Page said he is preparing a proposal to eliminate the policy that allows comments to be shortened to less than three minutes per speaker when the total comment time would be more than 20 minutes.

Supervisors will also vote on changing their sign rules “to ensure that only those signs that actually disrupt the Board meetings are prohibited in the Board room,” Page wrote

In response, Hamme noted they leave several of the ACLU’s concerns unaddressed.

“Your letter didn’t mention the other pieces we flagged…including addressing individual supervisors, anonymous speech, the security recordings, or the applause issue I mentioned the other day,” Hamme wrote back.

“Does the Board intend to address those issues as well or are they only willing to address the 20 minute public comment cap and sign policy?”

Additionally, Hamme continued to take issue with supervisors requiring all members of the public to give just one comment per meeting, no matter how many agenda items they want to speak about.

Hamme said court rulings have established the state’s Ralph M. Brown Act “requires the Board to provide both public comment and the opportunity for members of the public to comment on each specific agenda item.”

“This would provide an opportunity for those constituents who need to make their remarks early to do so and leave, as well as for those who may need to come later in the day or prefer to speak to the item closer to when the Board will consider it,” Hamme wrote.

“Importantly, this would also allow individuals to fully comment on multiple items, which is extraordinarily difficult in only three minutes.”

Page responded that the Brown Act does not require supervisors “to provide both a [general] ‘public comment’ period as well an opportunity for the public to comment on each agenda item at the time it is taken up by the legislative body.”

He also defended the county’s policy blocking the release of security footage of board meetings.

“Obviously, public access to the security video might reveal ‘blind spots’ in the Sheriff’s monitoring of the Board room from which an assailant could fire a weapon or place an explosive device with less likelihood of detection,” Page wrote.

“As the (public) video of Board meetings dating back to 2007 is readily available on line, we think a court would probably agree with us on this point that the public interest in nondisclosure of the security video substantially outweighs the public interest in disclosure.”

Additionally, Page said the public has benefitted from a Nov. 8 policy change that ended the ability of the public to comment on individual items when they came up and moved all comments to the beginning of the meeting.

Before that change, the public could speak for up to three minutes per item with a total cap of nine minutes per meeting. But the policy change, which was proposed by Supervisor Lisa Bartlett, moved all public comments to the beginning of the meeting and imposed a three-minute total cap per speaker.

The number of commenters “tripled as a result of this positive change,” Page wrote to the ACLU.

“Members of the public now have the benefit of a ‘time certain’ as to when they can provide public comments to the Board, and may do so regardless of whether the issues they wish to address involve items that are included on the regular meeting agenda,” he wrote.

The ACLU letter seems to have already led to more time for public commenters.

In prior meetings, when dozens of speakers wanted to comment, Steel would limit each person to two minutes, or – in the case of the Jan. 24 meeting, one minute – in order to keep the total public comment period to one hour.

But at last week’s meeting, which followed the ACLU letter, Steel let members of the public to speak for up to three minutes each.

Altogether, 37 people spoke, which lasted a little over an hour and a half. (While some used the full three minutes, others were more succinct.)

Hamme was among those who spoke last week, and told supervisors that listening to public comments is a crucial part of their responsibility.

“Listening to your constituents is not an inconvenience to be ignored. It is the very nature of your job as supervisors,” Hamme said.

Eve Garrow, an ACLU homeless advocate added “those of us who represent people without economic power, we don’t have powerful moneyed interests to take out ads during campaign season and to get your attention. We come and speak with you directly, during public comments.

“And when the board restricts public comments to three minutes for all agenda items, and sometimes even limits it to one minute [per person], we cannot engage in meaningful public comments. It does a disservice to the groups we represent. It’s undemocratic.”

None of the supervisors responded publicly to Hamme and Garrow’s comments at the meeting.

Nick Gerda covers county government and Santa Ana for Voice of OC. You can contact him at ngerda@voiceofoc.org.

  • Shirley L. Grindle

    This whole effort to short-cut public input (led primarily by Chmn. Michelle Steel) is ridiculous. I know there are several individuals who abuse their public speaking right by speaking at every meeting on the same issue week after week. This is annoying to the Board, but that goes with the job description of being an elected County Supervisor. (If I were a Supervisor, I would call these individuals into my office to see what I could do to resolve their issues — instead of ignoring them week after week and month after month).
    Furthermore, requiring every one to speak at the beginning of the meeting on agenda items that appear later in the agenda (sometimes hours later) is ineffective. Most of the Supervisors will be unable to recall the earlier public comments and thus the value of these comments is considerably diminished. It looks like this Board doesn’t value or need public opinion, indeed most of the decisions made by the Board are already made before the meeting starts.

    • LFOldTimer

      You make excellent points, Shirley.

      What bothers me is that the supervisors are effectively punishing 3 million residents for the acts of 3. Very unfair.

      And you’re correct. If the supervisors at least made an effort to bring the parties in the disputes together for a meeting (w/ no guarantees) it would likely reduce the tension on Tuesday between the regular speakers and the board.

      Giving all speakers a one shot 3-minute time limit at the start of the meeting for agendas that commonly have 70 items or more is one of the dumbest decisions I’ve ever seen a board make. And that’s saying something. You can thank Lisa Bartlett for that bone-headed proposal.

      • Shirley L. Grindle

        I agree 100% – this is one of the dumbest decisions I have seen the Board make and was very surprised to see Lisa Bartlett do this. Not surprised at all about Michelle Steele as she is just a mouthpiece for her husband and the Schroeders.

        • OCservant_Leader

          PREACH!

    • OCservant_Leader

      The fact that the BOS stonewall the very vocal regulars…and aren’t able to resolve their family issues with government is a great example of how inept these public “leaders” are.

      They are just creating barriers to hide from public contact. They do not want to be responsible for anything except lining their own pockets.

      Keep up the good fight Shirley!

  • verifiedsane

    The BoS isn’t going to listen to the public no matter how much time or who the citizenry addresses…..these meetings are just a deemed necessary evil the Sups currently barely tolerate…

    OCServant_Leader said it best in comments “Who the Flying Duck do these ELECTED officials think they are?”

  • OCservant_Leader

    Who the Flying Duck do these ELECTED officials think they are?

    We need to put a OC coalition together — a ONE issue group to kick these criminals out of office and extract our government from their grip.

    This is insane!

  • Ed Romero

    The Board of Supervisor’s wants to run the County of Orange the same way that that both of those former O C Sheriff’s and those Drug Dealing, Marijuana Smoking, Cocaine Snorting Racist Lesbians that ran the O C Probation Department. If anyone dares to confront them their henchmen would be dispatched. The Good Old Days are gone, they no longer existed here in Orange County. If any Supervisor doesn’t like what the Taxpayers say about them they can RESIGN, just like I had to do when those Crooked Criminals that ran the O C Probation. I only stated the TRUTH and that’s something the members of the O C GOP can not accept. When a Chief Probation Officer Smokes so much Marijuana that her neighbors call our Probation Records Unit complain it’s time for that Dirty Crook to RESIGN, but she didn’t the Board of Supervisor’s promoted her to Director of Health, she had a HIGH SCHOOL EDUCATION but when did that stop the GOP of rewarding it’s Racist members. When an Asst. Chief Probation Officer Smokes so much Marijuana while on DUTY, it’s time for her to RESIGN, but she didn’t, but she did FIRE a Hispanic Male for reporting to work late. There is one member of the Board of Supervisor’s from back in that time, he also kept his Mouth Shut just like those 2 former O C Sheriff’s. No one wanted a phone call from the NUT CRACKER in the Reagan White House.

    • John Claxton

      Which chief are you referring too? I was a deputy correctional officer for years and never knew about this.

    • Jacki Livingston

      You would do much better if you cut out the ridiculous crap about lesbians. A person’s sexual orientation has nothing to do with their fitness in their job. If you want to be taken seriously, get serious and stay on topic.

  • LFOldTimer

    What we have here are fake rules that favor decorum over democracy at a public government meeting. The supervisors will push the envelope to the limit because even if they lose in court it will not cost any of them one thin dime. Once again the taxpayers will get stuck holding the empty bag.

    The supervisors have the flawed notion that they are entitled to respect from the public. Nothing in farther from the truth. And no, we don’t even have to respect their offices. This is not the military, the supervisors are not generals and we are not enlisted grunts.

    The knee-slapper is that after they confiscated the bulk of the voice of the people they still demand respect. ha. Our voice is all we have, other than voting the rascals out of office on election day.

    This should be a HUGE election issue. Spitzer is already behind the eight-ball with the Wahoo incident. If he votes to take this to court, fight the will of the people and waste an ungodly amount of tax dollars in the process he can kiss his DA job good-bye.

    The others who are not termed out or plan to run for another local office had better think long and hard before disrespecting the general public’s voice at tomorrow’s vote.

  • kburgoyne

    Next up: Speakers to be limited to only praising the poor poor abused and unloved Supervisors. Requiring attendees to bring candy for the Supervisors is under consideration.

    As the saying goes, Supervisors… If you can’t take the heat, stay out of the kitchen. Apparently minimum wage fast food workers are expected to take more abuse than the Supervisors.

    As for the signs, the ONLY issue I can see there is any consideration over their blocking the view of other attendees or if there gets to be a mini-battle that sometimes starts over one person trying to use their sign to obstruct another person’s sign. Although perhaps that’s a non-concern unless attendees actually start complaining.

    • David Zenger

      Pretty soon they’re going to have to place themselves in Adolf Eichmann glass booths for protection from their own constituents.

  • David Zenger

    “But at last week’s meeting, which followed the ACLU letter, Steel let members of the public to speak for up to three minutes each.”

    In other words, the Chair’s actions, as well as being dictatorial, are completely arbitrary. Check.

    I have NEVER heard of any board or commission telling the public they cannot address members by name, and the despite Spitzer’s idiotic assertion that a public speaker was “out of order,” the public is not bound by parliamentary procedure or self-imposed rules the Board uses to regulate its own behavior.

    A real, twisted bunker mentality has set it in Building 10: fake rules governing public behavior, metal detectors, and now a comical legal theory asserting the “privileged deliberative process” of a Supervisor.

    There is no integrity on the 5th or the 4th Floor.

    The only thing the public has going for it is that these people detest each other as much as they detest us.

    • I’m not sure how the five egos actually co-exist in one small space without causing a chain reaction explosion that would obliterate Orange County.